HKSAR v. POSSO VERGARA CRISTHIAN ENRIQUE

CACC 538/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 538 OF 2011

(ON APPEAL FROM HCCC 252/2011)

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R E A S O N S   F O R   J U D G M E N T

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Hon Barnes J (giving the Reasons for Judgment of the Court):

1. On 13 December 2011, the applicant was convicted after a re-trial before Line J and a jury of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to eight years imprisonment.

2. The applicant applied for leave to appeal against conviction. We dismissed the application on 16 July 2013.  We indicated we would provide our reasons later, which we now do.

The Indictment

3. The particulars of the charge were that on 1 April 2009, inside Flat C, 17^th Floor, Yen Men Building, Nos 98‑108, Jaffe Road, Wanchai, the applicant unlawfully trafficked in a quantity of dangerous drugs, namely 94.36 grammes of a powder containing 35.36 grammes of cocaine, 26.55 grammes of solid containing 15.75 grammes of cocaine, 46 tablets containing 4.89 grammes of ketamine and 1.18 grammes of cannabis in herbal form.

Prosecution case

4. The prosecution case was relatively straight‑forward.  Most of the evidence was admitted by way of Admitted Facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.

5. At around 22:45 hours on 1 April 2009, police officers laid ambush on a staircase outside Flat C, the premises particularised in the charge.  Shortly after, the police entered the flat with the applicant and conducted a search.  Inside a safe, the police found the dangerous drugs particularised in the charge, an electronic scale, 13 re‑sealable plastic bags and an MTR ticket.

6. According to the evidence of the police, the key to the safe was seized from the applicant, who also provided the password to open the combination lock on the safe.

7. The applicant was arrested by the police for the offence of trafficking in dangerous drugs.  The applicant said nothing under arrest.  The arresting officer made a post‑entry record of the arrest and caution, with the assistance of a Spanish interpreter, and the applicant confirmed that the contents were correct.

8. On 2 April 2009, in the presence of his then legal representative, Ms Ody Lai of counsel, and with the assistance of an independent Spanish interpreter, the applicant was video‑interviewed by the police.

9. During the video‑recorded interview, the applicant repeatedly said that he possessed the dangerous drugs found inside the safe for his own consumption but exercised his right to silence when asked a host of further questions.

Defence case

10. The applicant gave evidence during the trial and called one witness.  The applicant said he was intercepted by the police when he returned home, not having stayed home the night before.  The police searched his flat without showing him any search warrant.

11. Basically, the defence was that the applicant had no knowledge of the existence of the dangerous drugs found inside the safe.  Only he and his wife, who had left Hong Kong for Columbia two weeks before his arrest, had keys to the flat.  He did not know what had happened to his wife’s keys.  He said his wife bought the safe for the safekeeping of her jewellery.  He had the key to the safe but kept it in a cabinet.  He had memorised the password for the combination lock but had nevertheless written it on a piece of paper and stuck it to the side of the safe.  However, when the police searched the flat, that piece of paper was no longer there.  The police got the key from the cabinet but falsely said that the key was seized from his person.

12. After his arrest, he was taken back to the Wanchai police station.  He had a meeting with Ms Lai.  He was advised by her not to answer any questions.  However, on the way to the Police Headquarters for a video‑recorded interview, the arresting officer whispered to him and told him that if he wanted to “get outside today” he had to say that he had the drugs for his consumption.  As a result of this inducement he made the admission that the dangerous drugs were for his own consumption during the video‑recorded interview.  After the video‑recorded interview, he asked the arresting officer and the inspector in charge when he would be released on bail, but to no avail.

13. Later in jail he came across someone called Erfan and Erfan told him something about a police informer called Michael and Michael’s girlfriend Paola, a Columbian lady.

14. The applicant knew a Columbian lady called Paola who had used the computer at his flat on three occasions before his arrest.  He had told Paula the code to gain access inside the building on the street level.

15. Erfan was called as a defence witness.  His evidence was that he met up with Michael on the evening before the applicant’s arrest.  Michael had shown him (Erfan) some dangerous drugs inside a plastic bag held in his (Michael’s) hand.  Erfan then saw Micheal getting a key from Paola.  Michael then entered the building where the applicant’s rented flat was located by pressing the security code.  Erfan saw Michael entering the lift inside the building.  Erfan said he waited for two or three hours for Michael’s return but to no avail.  The implication was that this Michael had planted the dangerous drugs inside the applicant’s safe though Erfan did not actually witness that.

Grounds of appeal

16. In the Notice of application for leave to appeal against conviction filed on 28 December 2011 the applicant raised four grounds of appeal:

Ground (1):  The search inside his flat was unlawful without a search warrant.

Ground (2):  The judge gave a one‑sided summing up without mentioning to the jury the major points of the defence.

Ground (3):  Impermissible leading questions by the prosecutor.

Ground (4):  A “sleeping juror” complaint.

17. Subsequently the applicant filed no less than nine affirmations in which he not only repeated some of the complaints already raised, he advanced a further seven grounds of appeal:

Ground (5):  Incompetence of his counsel.

Ground (6):  A reference to “scales” whereas there was only one set.

Grounds (7) and (8) are closely related:

 The judge misunderstanding his evidence and telling the jury that he had access to legal advice before and after the police inducement whereas he only had legal advice before and was not thereafter allowed to have a private meeting with his lawyer.

Grounds (9) and (10) are also closely related:

 The judge cast doubt on the defence case and used harsh comments on the defence, resulting in an unbalanced summing up.

Ground (11):  The calculation of the estimated street value of the cocaine in the Admitted Facts was wrong.

Considerations of the submissions

18. Broadly speaking, the applicant’s complaints can be divided into three main areas:

(a)  Incompetence of his counsel.

(b)  Wrongdoings of the police by using an informer who had planted the dangerous drugs into the safe; searched his flat without a search warrant; and then induced him to admit possession of the dangerous drugs for his own consumption.

(c)  The summing up by the judge was unfair to him and there were misdirections.

19. We will deal with the complaints in turn.

20. As a general rule, an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence (see Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126).

21. We have read carefully the complaints by the applicant contained in his voluminous affirmations and the affirmations filed by counsel and the trainee solicitor in response.  We have also carefully considered the applicant’s oral submission and those pages of his “written instructions” to counsel which he wished us to see.  We found no basis to support the allegation of incompetence on the part of his counsel.

22. Counsel represented the applicant when he appealed against his conviction after the first trial.  When the conviction was quashed and a re-trial was ordered, counsel was assigned to represent the applicant during the re‑trial.  The evidence against him had not changed.  The case of the defence had not changed either.  The applicant’s allegation of insufficient communication between him and counsel, or that counsel was not familiar with the case, were not made out. The applicant was represented by a highly experienced and capable counsel, whose explanations to this court for tactical decisions made strike us as eminently sensible.

23. We are satisfied that nothing turns on the search warrant or the sleeping juror issues.  Counsel was aware of the positions and did not press the prosecution to produce the search warrant, or to raise the matter of the sleeping juror with the court, for good tactical reasons.  Counsel was also instructed not to raise the sleeping juror issue.

24. As to the allegation that counsel failed to follow the applicant’s instruction to call Michael to give evidence, we noted the contents of Michael’s statement, which basically denied that he had planted the dangerous drugs inside the applicant’s safe, contrary to the implication painted by the evidence of Erfan. Counsel was of the view that calling Michael would have been detrimental to the applicant’s case. His judgment in this matter cannot be criticized.

25. Regarding the alleged wrongdoing of the police, we have already indicated that the matter of the search warrant was irrelevant in this case.  The evidence against the applicant was overwhelming: dangerous drugs were found inside a safe in his home.  He had the key to the safe and also provided the password to the police in order to open it.  The suggestion that somehow someone managed to get inside his home and placed dangerous drugs inside his locked safe was not supported by evidence.  All that Erfan could say, if his evidence were to be believed, was that Michael had dangerous drugs with him and that Michael went inside the same building in which the applicant lives after getting one key from a Columbian lady called Paola.

26. We also noted the way the applicant exercised his right to silence but repeatedly made admission that he was in possession of the dangerous drugs inside the safe for his own consumption does have the hallmark of having received advice from his lawyer.  In any event, the arresting officer denied the applicant’s allegation that inducement was made to him in the car.

27. We have studied the summing up of the judge.  Whilst the judge drew attention to specific weaknesses in the defence case, he did not, in our judgment, cross into impermissible comment.

28. We are not satisfied that there was any misdirection by the judge.  The jury knew full well that only one set of electronic scales was involved.  The judge had used the term “scales” as one does when referring to one set of scales.

29. The evidence also showed that the applicant had a private meeting with his lawyer at the Wanchai Police Station and the same lawyer was present throughout the video‑recorded interview.  There is no hint in the interview of the applicant asking for time with his lawyer and the contents of the interview have all the hallmarks of a course of conduct by the applicant after proper consultation with his lawyer.

30. Finally, we found no substance in the applicant’s complaint that prosecution counsel used leading questions, or that the retail price of the cocaine admitted into evidence by way of Admitted Facts was wrong.  We do not accept the calculation should be based on the weight of the cocaine without the powder with which the cocaine was mixed.

31. The grounds submitted by the applicant were totally without merits and accordingly we dismissed his application for leave to appeal against conviction.